The American people have been very fortunate to have had an Ombudsman like Bob Martin and a Special Investigator like Hugh Coffman, looking out for their interest. I recently attended a conference with citizens who live near Superfund sites all over the country and applause followed after any mention of their names. Many citizens felt that they would have never been heard had it not been for the Ombudsman. I live near the Shattuck chemical site. I feel that the Ombudsman's office was instrumental in correcting a mistake that had been made. I implore you to support the Ombudsman process and to make sure that they are allowed to do their job, by letting them choose their cases and by funding them independent of the EPA. Thank-you. Cindy Koke. STATEMENT OF WILLIAM A. SMEDLEY, EXECUTIVE DIRECTOR, GREENWATCH, INC.; BOARD MEMBER, PEN; CHAIRMAN LEGAL COMMITTEE, AIR Thank you for the opportunity to provide this testimony in connection with the June 25th hearing conducted in Washington DC. Although I was unable to attend this important hearing, I wish to provide the following testimony regarding my experiences with the National Ombudsman's office. This testimony is submitted on behalf of three non-profit organizations which I hereby represent: GreenWatch, The Pennsylvania Environmental Network (PEN) and Arrest the Incinerator Remediation (AIR). Our grassroots citizens group AIR saw first-hand in Lock Haven Pennsylvania, with the Drake Superfund Incinerator, how the EPA is unresponsive and evasive to those citizens who are most affected by their decisions. We have seen for ourselves how the EPA bureaucracy has repeatedly tried to prevent and interfere with the Ombudsman's investigation at Drake and other Superfund Sites. I can tell you first hand that Mr. Martin is one of the few people in the EPA who has earned the respect, trust and admiration of AIR and other groups across Pennsylvania. Although we were unable to stop the operation of the Drake Incinerator, due to the unconstitutional language of Superfund law, Robert Martin helped us tremendously in his capacity as Ombudsman. Because of the unconstitutional provisions of Superfund law locking AIR out of Federal court (Section 113H), the Ombudsman was the only place for citizens to go where someone would independently hear their grievances and investigate their allegations. Mr. Robert Martin did an excellent job trying to mediate a bad situation only to find himself in a face off against Asst. Administrator Tim Fields and hostile, unreasonable Region 3 officials, namely one Thomas Voltaggio (promoted after Drake to Asst. Regional Administrator). The Ombudsman's recommendations and reports in the Drake case were professional, reasonable, well thought out and researched and should have resulted in, at least, a temporary shut down of operations at Drake until the issues were resolved. Officials from our State DEP even had the audacity to tell the Ombudsman that his involvement at Drake was "untimely". Untimely indeed, I pulled empty beer cans (in bags with Drake instrument calibration documents) out of secure Drake dumpsters shortly after the Ombudsman left town. Instead of Region 3 officials admitting that their contractors were drinking beer they did damage control saying publicly that empty beer cans were not proof that the contractors were drinking while operating a hazardous waste incinerator on a Superfund Site. The Region 3 Drake operation manager, Gregg Crystall later told me that EPA should have just admitted that the contractors were drinking but he allowed their public relations machine to spin the incident anyway. Drake burned in 1998 and we understand that since then EPA Region 3 officials have been trying to burn Mr. Martin in retaliation for doing his job as Congress had intended. During the Drake fight, in reaction to Mr. Martin's report on Drake, we also saw EPA create the "regional ombudsman" program that we recognized immediately as a sham. The regional folks are nothing but seasoned yes men and we and others statewide and nationwide have boycotted any involvement with them. There is only one true Ombudsman, Mr. Martin. This ploy was nothing but an attempt to take away the power vested in Mr. Martin originally by Congress. Since then we have reviewed the GAO report on the National Ombudsman. The report verified our feelings that Mr. Martin did not have sufficient independence, was interfered with by EPA and that the regional "ombudsman" are compromised with tremendous conflict of interest and are far from independent. In my capacity as Executive Director of GreenWatch, a non-profit organization dedicated to helping citizens with environmental problems, I have seen the regional "ombudsman" at work. The "investigation" conducted by the Region 3 “ombudsman” in the Boyertown Bovine Site near Gilbertsville, PA vindicated Region 3 officials and was insulting to us and our clients. His actions again reinforced our belief that the “regional ombudsman” program was designed to circumvent Mr. Martin's involvement and to do damage control for the Region. We still need Mr. Martin's help at this site as EPA Region 3 officials actually had the audacity to blame the farmers for their own dying dairy herd prob-lems even in light of tremendous evidence of fluoride pollution from a local industry doing government contracts. While the farmers wait for the Ombudsman's help, and for your action on legislation, they slip faster toward bankruptcy. On January 29, 2000, I traveled to Denver Colorado to testify at an Ombudsman hearing conducted by Senator Wayne Allard. I represented many citizens and several organizations in requesting that Senator Allard move Ombudsman legislation through the Senate and eventually through Congress so that citizens nationwide could have a truly independent, well funded National Ombudsman. Too much time has passed since then and citizens now find themselves without an Ombudsman due to EPA's attempt to transfer the Ombudsman to the Inspector General's office resulting in Mr. Martin's resignation. The EPA has demonstrated, on many occasions, that they cannot be trusted with allowing the Ombudsman to function independently leaving citizens with no Ombudsman to assist them. My opinions of EPA's treatment of the National Ombudsman's office and with EPA (Regional and National) interferences with the National Ombudsman's office have been formed from many interactions with citizens working with Mr. Martin and his office nationwide. AIR worked closely with the citizens in Times Beach Missouri and learned how EPA rams incinerators down citizen's throats before the Drake Incinerator came to Lock Haven. On behalf of AIR, I traveled to Times Beach to learn from the citizens fighting EPA there and personally requested involvement from Mr. Martin at that time. I witnessed the EPA regional officials treatment of citizens in Times Beach and was horrified at thinking that we were next. Mr. Martin along with the professional assistance of his investigator, Hugh Kaufman, did their best to reason with Region 3 officials regarding Drake, only to be ignored and down played. I have worked with citizens in Denver fighting the Shattuck Superfund Site and saw how they were treated by their EPA regional officials, same game different city. Again, Mr. Martin and Mr. Kaufman did their best to help against the power and deception of the region and Mr. Fields. I also assisted the citizens of McFarland California with obtaining copies of their documents that were eventually turned over to the IG's office. I spent 6 hours copying thousands of pages of documents at EPA in order to preserve copies before they were confiscated by the IG's office. Citizens feared that once the IG's office got hold of their documents that they would be gone forever. Having no faith in the IG's office, we believe their fears were well founded. Citizens who are members of PEN in Troop PA fighting the Marjol Battery site again learned first hand about how Region 3 officials (Voltaggio again) treat people who question their authority and tactics. The Ombudsman's work is not done in Troop PA and citizens desperately need Mr. Martin and Mr. Kaufman back. As I said previously, too much time has passed while citizens nationwide wait for action on legislation to fund a independent National Ombudsman office. Now we find ourselves with no place to turn for help with many situations were we desperately need the Ombudsman. I am convinced that Mr. Martin and Mr. Kaufman were targeted because of their honesty and integrity with their work on behalf of the U.S. Congress and the American People. I would be happy to appear before any Senate Committee anytime to testify about our experiences with Mr. Martin, his office and his integrity and about our negative experiences with Mr. Fields and USEPA Region 3 officials. I urge you on behalf of GreenWatch, AIR and PEN to do everything in your power to rapidly move legislation through Congress to again give the American people an independent office of National Ombudsman with Mr. Martin in charge with the power to manage his own staff and budget. The loss of the National Ombudsman office is a severe blow to our trust in our elected officials who ultimately bear the responsibility for the loss of our National Ombudsman. Please give us the National Ombudsman that was originally intended. While you wait and deliberate citizens suffer from the lies and deception of corrupt regional and national EPA officials who enjoy impunity from their fowl actions. Time is of the essence; please give us back our Ombudsman, Mr. Robert Martin. We have lots of work for him to do before it is too late. Again, thank you for the opportunity to give testimony on this very important issue. Committee of Environment and Public Works SUZIE CANALES, Corpus Christi, June 21, 2002. DEAR COMMITTEE OF EPW, my name is Suzie Canales with Citizens for Environmental Justice (CFEJ) based in Corpus Christi, Texas. We are a bipartisan watchdog group residing in a county that is mostly Hispanic and low-income. We live in an industrial City with numerous refineries. Over the last 50 years, Nueces County operated over 40 pre-regulation landfills. For decades our county has been environmentally over-burdened. We have documentation of high cancer rates as well as high birth defects, yet Local, State and Federal Agencies have dismissed our environmental health concerns conducting studies that were inadequate, misleading and arbitrary. Government agencies, in this case the EPA, must be held accountable. The only way to ensure that grassroots citizens groups get a fair and impartial review of our disputes with the EPA is to support S. 606. It is imperative that the National Ombudsman has the additional authority S. 606 proposes in order to conduct inquiries into disputes such as ours. This will ensure that the EPA, the agency charged with protecting the environment be held accountable to the people who turn to them with environmental concerns. If there is no effective accountability system in place, I can assure you it is not the EPA who will suffer, it is the people affected. It is imperative that Robert Martin be reinstated with all the authority proposed in S. 606. In our corner of the world, this would insure that our community would at last get a fair investigation that we deserve. Therefore, we respectfully request that the Committee of Environment and Public Works, support S. 606. Sincerely Yours, SUZIE CANALES, Citizens for Environmental Justice (CFEJ). ENVIRONMENTAL LAW SOCIETY, VERMONT LAW SCHOOL, Hon. JAMES M. JEFFORDS, Chairman, Senate Environment and Public Works Committee, Washington, DC. July 13, 2002. DEAR CHAIRMAN JEFFORDS: On behalf of Vermont Law School's Environmental Law Society, we would like to provide written comments for the record following the Senate Committee on Environment & Public Works Hearing on EPA's recent decision to move the EPA Ombudsman to the Office of Inspector General held on June 25, 2002. We write in strong opposition to the decision to locate the EPA Ombudsman in the Office of Inspector General and urge the Senate to properly reauthorize this critical check and balance, that has been available to communities who seek to protect their public health and their environment. Throughout, the past year many Vermont Law School (VLS) students have followed the exceptional work and the associated controversy of the EPA National Ombudsman in his work in New York City, Idaho, Florida, Pennsylvania and Colorado. When citizens struggle with the intricacies of a hazardous waste cleanup or an EPA bureaucracy determined to implement a plan, the EPA Ombudsman provides an open and transparent process to help resolve their complaint. For citizens who do not have first hand experience with the government, and/or the often complicated bureaucracy of the EPA, the Ombudsman process may be difficult to imagine. Many do not fully understand what it is like to have decisions seemingly arbitrarily made to not cleanup a radioactive waste site (Shattuck Superfund site in Denver, CO), or not cleanup a lead battery dump (Marjol Battery in Throop, PA) or not have homes tested for contaminants in the case of residents surrounding the World Trade Center. The EPA Ombudsman provides a mechanism to help citizens obtain an independent review of Agency decisions that appear to be misguided. Today, however, the EPA Ombudsman function no longer exists at EPA. Instead of acting on the recommendations of the General Accounting Office (GAO) made in July 20011-to give further independence and control of resources to the EPA Ombudsman-the move to the OIG has done just the opposite. The move has stripped the Ombudsman of any semblance of independence and further diminished the Om 1 See Gen. Acct. Off., Hazardous Waste: EPA's National and Regional Ombudsmen Do Not Have Sufficient Independence, GAO-01-813 (2001). budsman's ability to perform his job. While the OIG is an independent office with respect to the EPA, its guidelines and procedures that require it to speak with “one voice" run counter to the mandate of an ombudsman, which requires investigating complaints made about agency decisions, and not simply codifying agency decisions. The OIG is a poor choice for the EPA Ombudsman for several reasons. First, the ombudsman doe not have the independence necessary to perform the role of an ombudsman within the OIG. It is our understanding that the recently appointed IG "Ombudsman" does not have authority to decide which cases he or she will investigate. Second, the IG Ombudsman does not have the freedom to speak with citizens, Congress, or the press due to standard OIG procedures. Instead, the IG Ombudsman must work through a Community relations person or a Congressional liaison to speak with the public, Congress or the press. We know of no legitimate mainstream ombudsman who must jump through these hoops to perform their job. Third, we are not aware of any Federal Ombudsman that is housed in the Inspector General's office. Both the IRS and the FDIC Ombudsman report directly to the head of the respective agencies. The IG has an important role in government-investigating fraud and abuse-but the IG's mandate is much narrower than the charge of an Ombudsman. We would like to take this opportunity to ask the Senate to take immediate legislative action to restore the independence of the EPA Ombudsman. The legislation should provide the EPA Ombudsman with functional and structural independence that is consistent with the professional standards of the Ombudsman community. The EPA Ombudsman must be able to choose his. or her own cases, control his or her own resources and staff, communicate freely with the public and Congress, and maintain confidentiality with complainants. We recommend the following changes to S. 606 "The Ombudsman Reauthorization Act of 2001." First, we recommend that the EPA Ombudsman have independent subpoena power, which is consistent with other Federal ombudsman. Second, we commend the EPA OIG for its decision to expand the Ombudsman function to apply to all programs that are under the jurisdiction of the EPA, and hope that the final legislation will incorporate this decision for we believe this change would help to better serve the public. We note specifically the need for an Ombudsman to receive complaints about EPA decisions that have the effect of disproportionately impacting low income communities and communities of color who are already over burdened by hazardous waste in this country. Additionally, programs under other environmental laws such as the Clean Air Act might be well served by an independent ombudsman. Third, we also recommend that the Regional Ombudsman be appointed by and report directly to the EPA National Ombudsman. The regional ombudsmen must do fulltime ombudsman related work and not do part time work on Superfund or other programs as is the case today. Past direct or perceived conflict of interest must be remedied in order for the ombudsman program to be effective at EPA. The Regional Ombudsman should merely be an extension of the National Office and must assist the National Ombudsman in investigating and reviewing complaints and other duties. Fourth, we recommend that the Ombudsman be granted the specific power to petition the Administrator and/or Congress to seek additional funds from Congress to perform technical sampling or investigative support work. Finally, we recommend that the EPA Ombudsman report directly to the Administrator of the Environmental Protection Agency. Although there has been significant controversy between the Ombudsman and his or her staff and the Administrator (in both of the past two Administrations), we believe that if legislation secures the EPA Ombudsman sufficient independence and control of his or her resources, that this structure is the most effective for an executive branch ombudsman. This is the structure that ombudsmen at the Federal Deposit Insurance Corporation and the Internal Revenue Services follow and we feel this is a good model for the EPA Ombudsman. Further protection could be provided to the Ombudsman in the legislation by enumerating cause of removal from the position. Whistleblower protection must be available to the EPA Ombudsman and associated staff. Provided that the EPA Ombudsman controls his or her own budget, staff and resources consistent with Federal Civil Service rules, we feel this structure is advantageous beyond the particular difficulties with either of the past Administrations. If such a structure is not politically feasible, we recommend that the legislation be changed to have the EPA Ombudsman report directly to Congress as its own entity. We do not feel that GAO is a suitable location for the EPA Ombudsman because GAO does not receive complaints from the public. Notably, in March of this year, former EPA Administrator Carol Browner spoke at Vermont Law School's conference entitled Women Rethinking the Environment. During her 8 year tenure, there were certainly times when the Agency's bureaucracy tried to prevent the Ombudsman from investigating the Industrial Excess Landfill case in Uniontown, Ohio. In another case, the Ombudsman was temporarily denied authorization to travel to Tarpon Springs, Florida. This latter case, spurred Members of the House Energy & Commerce Committee to ask GAO to investigate the Agency's actions to hinder the Ombudsman's investigations. The GAO Report concluded the Ombudsman does not have sufficient independence or control of re sources. Today, have a Republican administration that has acted on the previous administration's desire to silence the people's advocate. As a result of the Administrator's decision to move the Ombudsman to the OIG, more than two dozen communities who previously relied on the Ombudsman process have been left without an independent watchdog to help safeguard their public health and their environment. This is especially critical given the dwindling level of dollars in the Superfund. We urge Congress to take this opportunity to reauthorize this critical watchdog position at EPA with the foregoing enhancements. As a final note, we also recommend that Mr. Robert J. Martin be reinstated to finish his case work that is currently pending and that he be considered for any future position as Ombudsman if that may be authorized by Congress. Thank you for your consideration of these comments on S. 606. Sincerely, Kristen Huysman, Environmental Law Society, Vermont Law School. MEMORANDUM FROM TOM DEVINE, GOVERNMENT ACCOUNTABILITY PROJECT Re: Public policy impact from abolition of independent EPA Ombudsman The alleged retaliatory reassignment and forced resignation of EPA National Ombudsman Robert Martin is far more than an employment dispute. It has serious consequences for communities who believe the agency illegally has permitted public health hazards to threaten their air and water supplies from hazards such as Superfund and toxic waste sites. In April when he was forced to resign, Mr. Martin was pursuing and seeking resolution of more than two dozen cases at the request of citizen organizations and congressional offices. In each case, the communities had reached an impasse with normal EPA channels, and the Ombudsman was their last resort. During his decade in office, after investigations, public hearings sometimes hosted by Members of Congress and subsequent mediation efforts, Mr. Martin has broken the deadlocks to reach mutually acceptable resolution in some 80 percent of his cases. Since reassignment of the Ombudsman function to EPA's Office of Inspector General ("OIG”) and Mr. Martin's forced resignation, however, there has been no further progress on any of the cases. The OIG has made no efforts to work with Mr. Martin as a transition to renewed efforts. The citizens' accountability lifeline has been cut. Mr. Martin's goal in his Whistleblower Protection Act case is to return for a fixed time period to complete the work that he started on pending cases. The list below is a sampling of cases that have been functionally killed. Alberton, Montana.-This Montana town suffered a disastrous train wreck 5 years ago that caused widespread chlorine contamination. It has caused health consequences such as blackouts, sexual dysfunction, memory loss and respiratory breakdowns. When he was removed, the Ombudsman was using videotape of the train's location to challenge EPA assertions that the toxic train could not be found. The search has been halted. Northern Idaho.- In this Coeur d'Alene basin, residents protested that the agency is not requiring Union Pacific to pay for its share of a $2-4 billion cleanup cost, although it is responsible for lead spills thousands of times above safe levels. The lead is contaminating rail and bike paths, to the extent motorists are still warned about leaving their cars to fix flat tires. At the request of the Idaho congressional delegation. Ombudsman Martin was pursuing the case when his efforts were halted by his removal. It remains dormant. Pensacola, Florida.-Area Congressmen and municipal officials from this poor African American community asked for Ombudsman Martin's assistance when EPA decided not to remove toxic wastes contaminated with dioxin. This case was pending when the Ombudsman was removed. Riviera Beach, Florida.- Four area Congressmen and the mayor of this poor African American community near West Palm Beach asked Ombudsman Martin to open a case, because the town's drinking water is contaminated by industrial solvents such as trichlorine ethylene. The residents protested that EPA was requiring the |